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Inevitable: criminal defendant wants access to NSA records

**Posted by Phineas

I had a feeling this was going to happen when it was revealed that the government was collecting metadata on everyone’s phones, including cell phones:

One South Florida man accused in a series of bank robbery attempts is hoping the recent revelation that the federal government is secretly keeping millions of U.S. phone records could help his defense.

Terrance Brown, 40, is one of five men on trial in federal court in Fort Lauderdale on charges they conspired to hold up armored trucks making cash deliveries to banks in Miramar and Lighthouse Point in 2010. They have all pleaded not guilty.

Another man, alleged co-conspirator Nathaniel Moss, 34, is serving life in federal prison after admitting he shot and killed Brink’s truck guard Alejandro Nodarse Arencibia, 48, during the final heist on Oct. 1, 2010, outside the Bank of America branch at 7950 Miramar Parkway.

The FBI and federal prosecutors are using cellphone records in court to try to prove that the five accused men were all nearby when the robbery attempts and planning occurred, asMoss, who is cooperating with the U.S. Attorney’s Office, testified.

The prosecution had told defense attorneys that they were unable to obtain Brown’s cellphone records from the period before September 2010 because his carrier, MetroPCS, had not held on to them.

Not so fast, Brown’s attorney Marshall Dore Louis argued in court documents filed in Fort Lauderdale days after the National Security Agency surveillance program was revealed last week.

Brown’s lawyer contends that cell phone location records may show his client in innocent and that the government should be required to produce them. Now, let’s stipulate for the sake of argument that Mr. Brown was not keeping the best of company and may well himself be a less-than-upstanding citizen. The prosecutors are, of course, fighting this, but it’s hard to see how the court can deny this request and yet plausibly maintain that it is protecting the rights of all parties in the case. Former federal prosecutor Andy McCarthy agrees:

I don’t see how the government avoids disclosing the NSA’s records to the defendant. The fact that it’s a national security program should be irrelevant. I’d also note that, in connection with the related PRISM program, in which the content of conversations is seized, the national intelligence director says the government reserves the right to make use of an American citizen’s intercepted communications if, among other things, they are “evidence of a crime.” We can argue whether that is good policy in connection with this kind of surveillance (which is outside the criminal law’s normal wiretap process), but I don’t see how the government can take the position that we’ll reveal information when it helps our prosecutions but not when it undermines them.

Presumably, the defense just wants the information in the records; there should be no need to get into how the government came to be in possession of the records, how the records are stored, or what the government needs to do to cull Brown’s records out of the databank. But if the information in the government’s possession is exculpatory, the government must comply with a disclosure demand. There are special procedures for doing this when the information at issue is classified. Bottom line, though, is that whether the government turns over the actual records sought, discloses the information in the records without giving up the records themselves, or enters a stipulation conceding facts the defense would use the information to prove, the law requires that the defendant be in no worse position than he would be in if the information were not classified and if he had obtained it through the regular discorvery [sic] process.

As McCarthy observes, not only is the prosecutor annoyed that he has to go through hoops he’s never heard of before to get this information, but there are undoubtedly people at the NSA quaking in their cubicles at the possibility that this may well be just the first drop in a coming downpour of disclosure demands, not just from current defendants, but almost every convict sent to jail in the last ten years. And why not? It’s in their interest to find out if the government has anything that can prove their innocence, or at least raise enough doubt for a new trial.

We’re going to be paying a price for Mr. Snowden’s actions —right or wrong— for years to come.

It is not Mr. Brown or any aspects about him that are classified information; he is not charged with a security breach but bank robbery. What is classified is how deep and expansive the NSA metadata manipulations go and the exposure that it has less to do with security than it does bureaucrats’ insecurities.

Given the pernicious and prejudicial nature of the IRS targeting scandal, it would be suicidal self-delusion to give any government agency the least bit of benefit of the doubt.